Cleveland State University
EngagedScholarship@CSU
Cleveland State Law Review
Law Journals
1982
What You Don't Know Will Hurt You: Physicians'
Duty to Warn Patients about Newly Discovered
Dangers in Previously Initiated Treatment
Barbara Eileen Calfee
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Recommended Citation
Note, What You Don't Know Will Hurt You: Physicians' Duty to Warn Patients about Newly Discovered Dangers in Previously
Initiated Treatment, 31 Clev. St. L. Rev. 649 (1982)
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NOTES
WHAT YOU DON'T KNOW WILL HURT YOU:
PHYSICIANS' DUTY TO WARN PATIENTS
ABOUT NEWLY DISCOVERED DANGERS IN
PREVIOUSLY INITIATED TREATMENT
INTRODUCTION ...............................................
I. THE NEED FOR A DUTY TO FOLLOW UP ..................
A. The Physician As Learned Intermediary .............
B. Expanding the Duty to Disclose Medical
N egligence .........................................
C. The Patient Has Less Access to Medical
Information........................................
II. ANALOGOUS FORMS OF LIABILITY ........................
A. Existing Duties to Inform or Correct ................
B. Existing Duties of Continuing Care ..................
649
651
651
653
654
655
656
660
III. ELEMENTS OF THE DUTY TO FOLLOW UP .................
A. The Prima Facie Case .............................
B . Defenses ...........................................
665
665
667
IV. POSSIBLE OBJECTIONS TO THE DUTY TO FOLLOW UP .......
671
671
673
674
675
676
A.
B.
C.
D.
E.
Record-Keeping and the Concern for Privacy .........
Imposition of Strict Liability ........................
Expense of Patient Recall ...........................
Doctor's Admission of Malpractice ...................
Damage to the Doctor's Practice .....................
C ONCLUSION ..................................................
676
INTRODUCTION
C ERTAIN
DOCTRINES IN TORT THEORY have been developed in
response to the special relationship between a physician and his patient. Many of these theories have come to be known as "duties," the
breach of which will subject the doctor to liability for negligence
-medical malpractice. These affirmative duties include (1) the duty to
exercise the special care and skill possessed by physicians;1 (2) the duty
to gather operative facts upon which to base a diagnosis;2 and (3) the du1 Brown v. United States, 419 F.2d 337 (8th Cir. 1970); Ayers v. Parry, 192
F.2d 181 (3d Cir.), cert. denied, 343 U.S. 980 (1951), reh'g denied, 344 U.S. 849 (1952),
344 U.S. 916, and 345 U.S. 961 (1953); Newman v. Zinn, 164 F.2d 558 (3d Cir. 1947).
2
Clark v. United States, 402 F.2d 950 (4th Cir. 1968); Alden v. Providence
Hosp., 382 F.2d 163 (D.C. Cir. 1967); Hicks v. United States, 368 F.2d 626 (4th
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ty to obtain informed consent prior to treatment.'
In recent years medical negligence liability has expanded greatly. Increasingly, the courts have made it easier for plaintiff patients to
demonstrate a cause of action. By using the doctrines of res ipsa loquitur,'
joint venture liability5 and enterprise liability,' the heavy burden of proof
has been lessened dramatically and in some instances completely removed.
The trend of expanding medical negligence liability was bolstered in
Tresemer v. Barke,7 a 1978 California decision. Tresemer involved a patient who based her theory of recovery on the proposition that the defendant doctor had a duty to warn her of the dangerous effects of her I.U.D.
when, subsequent to its insertion, he obtained knowledge of its hazards
The court recognized that although the doctor's actions at the time might
have been well within the standards of the community, that was not sufficient to negate the allegation that a later-matured duty had been
breached.' The appellate court reversed the lower court's grant of summary judgment for the doctor on the ground that a cause of action was
made out by the continuing status of physician-patient where the danger
arose out of that relationship."0
This Note will explore the newly recognized duty to warn a patient
when the health care provider subsequently learns that previous nonnegligent treatment is or may be harmful to him. The Note begins by
discussing the need for a duty to follow up on medical treatment." The
proposed duty is analogized to existing forms of liability involving obligaCir. 1966); Steeves v. United States, 294 F. Supp. 446 (D.S.C. 1968); Betenbaugh
v. Princeton Hosp., 50 N.J. 390, 235 A.2d 889 (1967).
' Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064
(1972); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); Lopez
v. Swyer, 115 N.J. Super. 237, 279 A.2d 116 (1971), modified, 62 N.J. 267, 300
A.2d 563 (1973).
1 RESTATEMENT (SECOND) OF TORTS S 328D (1965). See St. John's Hosp. &
School of Nursing, Inc. v. Chapman, 434 P.2d 160 (Okla. 1967); Ybarra v. Spangard,
25 Cal. 2d 486, 154 P.2d 687 (1944). See generally W. PROSSER, HANDBOOK OF THE
LAW OF TORTS S 40, at 230-31 (4th ed. 1971) (policy reasons justify the defendant
carrying the burden of proof where defendant assumes some special responsibility
toward the plaintiff).
I Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944) (the physician and
his assistants would be called upon to meet the inference of negligence since they
were in control of the unconscious plaintiffs body and the instrumentalities which
may have caused the plaintiffs injuries).
6 Sindell v. Abbott Laboratories, 26 Cal. 3d 558, 607 P.2d 924, 163 Cal. Rptr.
132, cert. denied, 449 U.S. 912 (1980) (many manufacturers of DES would be held
liable for plaintiff's injuries although specific manufacturer of drug which was
administered to the plaintiffs mother could not be identified).
' 86 Cal. App. 3d 656, 150 Cal. Rptr. 384 (1978).
8 Id. at 669, 150 Cal. Rptr. at 392.
9Id.
Id. at 672, 150 Cal. Rptr. at 394.
" See infra text accompanying notes 16-37.
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PHYSICIAN'S DUTY TO WARN
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tions to inform, to correct and to continue acting within a special
relationship.'2 The Note then outlines the primafacie case for, and defenses
3
to, an action for breach of the proposed duty to follow up.' It then considers objections that may be raised to the imposition of this duty, and
offers answers to these objections." Finally, this Note suggests several
methods for limiting the doctor's vulnerability to this proposed form of
action. 5
I.
THE NEED FOR A DUTY TO FOLLOW UP
A duty to follow up on a patient's treatment after the physician is apprised of new data revealing danger in such mode of treatment is needed
for several reasons. First, the physician is designated as the "learned intermediary" between medical products manufacturers and the patients
who use the particular products. Second, this duty would be a mere expansion of the necessary obligation that is placed on physicians to disclose
negligence when it occurs. Last, without a duty to follow up, many patients will incur unnecessary harm by being "kept in the dark" about
new scientific discoveries.
A.
The Physician As Learned Intermediary
Many prescription drug users have unsuccessfully sued drug manufacturers on the proposition that the manufacturers had a duty to warn the
patient of the drug's potential dangers.' The courts' reasoning in these
cases has been based on the doctrine of the physician as the "learned
intermediary."' 7 In this capacity the doctor takes the information from
the manufacturer, analyzes it and passes on the relevant warnings to his
patients. There are two basic rationales for this doctrine: (1) the physician is in a better position to understand the dangers involved'" and (2)
accompanying
accompanying
accompanying
accompanying
See
See
, See
" See
infra text
infra text
infra text
infra text
16 See
infra notes 17-21.
"
"
notes
notes
notes
notes
38-95.
96-123.
124-52.
153-57.
Brochu v.Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981); Stanback v. Parke, Davis and Co., 657 F.2d 642 (4th Cir. 1981); Timm v. Upjohn Co.,
624 F.2d 536 (5th Cir. 1980); Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th
Cir. 1974); Hoffman v. Sterling Drug, Inc., 485 F.2d 132 (3d Cir. 1973); McCue
v. Norwich Pharmacal Co., 453 F.2d 1033 (1st Cir. 1972); Sterling Drug, Inc. v.
Cornish, 370 F.2d 82 (8th Cir. 1966); Pierluisi v. E. R. Squibb & Sons, Inc., 440
F. Supp. 691 (D.P.R. 1977); Dunkin v. Syntex Laboratories, 443 F. Supp. 121 (W.D.
Tenn. 1977); Yarrow v. Sterling Drug, Inc., 263 F. Supp. 159 (D.S.D. 1967). See
Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. 1970). But see Comment,
Seley v. Searle, 49 U. CIN. L. REV. 517 (1980) (discusses the first steps towards
the eradication of the learned intermediary rule).
"' Gravis v. Parke, Davis and Co., 502 S.W.2d 863, 870 (Tex. 1973) (holding
that plaintiff could recover against drug manufacturer only upon a showing that
'7
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CLEVELAND STATE LAW REVIEW
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the physician's knowledge and skill allow him to take into account the
propensities of the drug by weighing the benefits and the dangers, thereby
enabling him to make an informed choice.19
Therefore, manufacturers of prescription drugs have been released from
liability due to the generally accepted rule that the manufacturers have
a duty to warn the medical profession of potential dangers, not the public."
However, the court in Seley v. G.D. Searle & Co." emphasized that "the
purpose of imposing a duty to warn is to protect the patient against unwarranted or unexpected injury. The duty to warn is for the ultimate
benefit of the patient."22 Upon this proposition many courts presume that
the doctor will relay the warnings to the patient." Clearly, when the doctor initially prescribes the treatment, he has a duty to pass on manufacturers' warnings due to the necessity of obtaining informed consent.2"
However, the desirable expansion of physician responsibility would demand that physicians relay warnings received subsequent to the initial
treatment decision. In the Tresemer case, the imposition of this duty required the defendant-doctor to notify his patient of the dangerous attributes of her I.U.D. when this information became known in the medical
community.
the drug was defective, not merely because the patient was unaware of the possible side effects).
19 Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir. 1974) (pharmaceutical companies have a duty to warn prescribing physician of dangers inherent
in prescription drugs).
I See supra note 19. But cf. Dixon, Drug Product Liability: Information for
Safety, 16 TRIAL 62 (1980). The official source for communicating drug information is the package insert. It defines the indications for drug use, the contraindications, the warnings, the adverse reactions, the dosage and the administration information. The insert goes to the druggist; however, some patient package
inserts have been developed, e.g., for oral contraceptives and asthma products.
Id. at 66; Lukaszewicz v. Ortho Pharmaceutical Corp., 510 F. Supp. 961 (E.D. Wis.
1981) (the Fed. Food, Drug and Cosmetic Act requires manufacturers of birth
control pills to give warnings directly to the patient); 21 C.F.R. S 310.501 (1978).
See also Bryant v. Technical Research Co., 654 F.2d 1337 (9th Cir. 1981) (manufacturer is not necessarily relieved from its duty to warn later purchasers merely
because it warned immediate buyer).
21 15 Ohio Op. 3d 338 (1980) (per curiam) (it is the duty of a drug manufacturer
to warn the prescribing physician of any possible dangers connected with the
prescription drug, not the patient or the general public).
Id. at 346.
"If the doctor is properly warned ... there is an excellent chance that injury to the patient can be avoided." Sterling Drug, Inc. v. Cornish, 370 F.2d 82,
85 (8th Cir. 1967); "ITihe duty to warn the patient, if one exists, lies with the
physician and not with the drug manufacturer." Dunkin v. Syntex Laboratories,
443 F. Supp. 121, 123 (W.D. Tenn. 1977); "If the doctor has been properly warned
of the possible side effects, then we believe it is his duty to convey this warning
on to the patient...." Gravis v. Parke, Davis and Co., 502 S.W.2d 863, 870 (Tex.
1973). See Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 142 (3rd Cir. 1973).
" See infra text accompanying notes 43-48.
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PHYSICIAN'S DUTY TO WARN
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Since it is obvious that the patient benefits only upon receipt of the
warning, the duty to follow up is a logical link in the "learned intermediary" chain specifically fashioned for patient protection.
B.
Expanding The Duty to Disclose Medical Negligence
The official establishment of an affirmative duty requiring physicians
to reveal instances of malpractice which they participate in or witness
has been proposed. 5 The various reasons given for this proposal include:
(1) the inadequacies of the medical profession's policing system;" (2) the
unequal nature of the doctor-patient relationshp; (3) the threat of additional physical harm; 8 (4) the decrease in the likelihood of a successful
malpractice suit;' and (5) the fact that many malpractice victims would
go uncompensated because, through no fault of their own, they were
unaware of the negligence.3 '
The duty to follow up patients' treatment is a necessary extension of
the duty to disclose negligence. The duties are identical in several ways:
3
the patient is unaware of the harmful aspect of the treatment, ' the doc32
risked.being
is
health
patient's
the
tor is aware of the danger and
The major difference is that the duty to disclose malpractice encompasses
immediate negligent behavior on the part of the doctor,' while the duty
to follow up involves alerting patients to treatment that-although not
negligent when initiated-has become unacceptable to the medical profession. Of course, the physician would not be liable for malpractice as
long as the treatment fell within the then-accepted professional standard
of medical practice.35 However, allowing a patient to be kept ignorant of
Vogel, To Tell the Truth: Physicians' Duty to Disclose Medical Mistakes, 28
U.C.L.A. L. REV. 52 (1980). See also Hagman, The Medical Patient's Rights to
Know: Report on a Medical-Legal-Ethical,EmpiricalStudy, 71 U.C.L.A. L. REV. 758,
803 (1970) (analysis of various situations in which a patient has a right to
know the truth about his health status). Cf. Baldor v. Rogers, 81 So. 2d 658 (Fla.
1955) (a physician has a duty to inform patient that the prescribed treatment
has failed and that the patient's only prospect of recovery is found in other
treatments; the court does not assume that the initial treatment is negligent;
therefore, the doctor must disclose the failure of unsuccessful non-negligent treatment, which appears to be an even greater duty than the disclosure of medical
negligence).
' Vogel, supra note 25, at 58-61.
2 Id. at 61-62.
Id. at 62-63.
Id. at 63-64.
30 Id. at 58.
11Id. at 58.
32 Id.
33
Id.
N
Id.
'
It has been traditional with the medical profession that the acceptable stan-
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CLEVELAND STATE LAW REVIEW
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potential health hazards remarkably resembles the failure to disclose
negligence. In both situations the patient is injured (or has the possibility
of being injured) while the physician has knowledge regarding the patient's health status and, in essence, forces the patient to incur unnecessary
physical harm.
Undeniably, the ultimate goal in obtaining the guidance of a medical
professional is to benefit one's health. The effect of both the duty to
disclose malpractice and the duty to follow up medical treatment will better promote the purpose for which one seeks professional help.
C.
The Patient Has Less Access to Medical Information
The reasons for seeking professional medical advice most frequently
evolve from the belief that health care providers are able to draw on
their superior medical knowledge in order to diagnose and treat ailments.
It is generally understood that medical professionals undergo rigorous
training and years of education in preparation for their careers. 3' No one
doubts the complexities of human anatomy and physiology, and those who
choose to study medicine are admired for their achievements. It is precisely this admiration and the realization of the physician's abundant wisdom
which draws the layman to the doctor's office. It is pure foolishness to
suggest that the non-professional has even a small percentage of the
medical know-how possessed by the average doctor. Besides the schooling aspect, the layman lacks access to medical data which the physician
has at his disposal. Therefore, even if we assume that the patient is
somehow able to diagnose his ailment, he will be virtually unable to identify the proper, most current mode of treatment. Doctors, on the other
hand, receive updated literature regarding the drugs they prescribe, attend medical seminars regarding new treatments, take "refresher" medical
courses, consult with an endless variety of specialists and read current
medical and scientific journals.
While the layman finds himself relegated to using medical information
that has filtered down the media funnel (often misinterpreted and
editorialized), the physician has the ability to understand complicated
dard of care be defined in terms of the skill possessed by the practitioner in
good standing for the community in which he practices. However, this
distinction -commonly known as the "locality rule"-has virtually disappeared
due to the rise in standardized medical education throughout the country. Evidence
is now required to show that the physician's conduct was in accord with recognized
medical practice. Expert testimony is used for these evidentiary requirements.
But see Helling v. Carey, 84 Wash. 2d 514, 519 P.2d 981 (1974) (the generally
recognized medical standard of care may not insulate the defendant from liability).
" In addition to completing a bachelor's degree education, the medical student attends medical school for four years and then serves a period as an intern.
The education process continues with a period as a resident at a hospital. If the
doctor chooses to specialize in a certain area of medicine he. will receive even
more training.
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PHYSICIAN'S DUTY TO WARN
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medical vocabulary, thereby enabling him to examine the available professional literature and draw his own conclusions." When seeking medical
attention the patient is actually paying to use the educated mind of his
physician. The doctor's brain is constantly being "re-programmed" with
additional, and contemporary data, and it is this on-going effort which
makes the physician's skill so very marketable. Since it cannot be denied
that the health care provider has a much wider access to medical
literature, the duty to follow up will assure that the patient gets equal
access to all pertinent information which may affect his well-being.
II.
ANALOGOUS FORMS OF LIABILITY
The duty to follow up on a patient's treatment after knowledge is obtained regarding the propensities of the initiated therapy rests on two
assumptions: (1) there are occasions when a duty to inform, correct or
amend exists; and (2) these duties arise out of a special relationship between the plaintiff-patient and defendant-doctor- a relationship embodying a continuous obligation of care. The receipt of information allows for
autonomy in decision-making thus permitting an individual to establish
a high degree of self-determination. Since "[e]very human being of adult
years and sound mind has a right to determine what shall be done with
his own body,"' it naturally follows that each person also has a right
to obtain the information necessary to make that determination. The duty
to correct or amend is an outgrowth of the duty to inform. It is obvious
that obsolete information is virtually useless, and in many cases, out-dated
information will actually harm those who rely on it. The duty to correct
is based on the belief that when A can foresee the possibility that B will
be harmed due to information given by A now known to be false or
misleading, A is in a position to prevent unnecessary injury to B.39 The
RESTATEMENT (SECOND) OF TORTS describes the duty to correct in the
following manner:
Duty to Act When Prior Conduct is Found to be Negligent
(1) If the actor does an act, and subsequently realizes or should
realize that it has created an unreasonable risk of causing
37 As a rule, consumers generally lack the technical expertise and training
needed to fully appreciate developments in the safety of consumer goods even
if they were able to gather current safety information. Cf. 1 L. FRUMER & M.
FRIEDMAN, PRODUCTS LIABILITY S 8.01, at 143, 152-54 (1981).
38
Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129, 105 N.E. 92,
93 (1914), overruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d
3, 163 N.Y.S.2d 3 (1957).
" See Cruthirds v. R.C.I., Inc., 624 F.2d 632 (5th Cir. 1980) (owner-occupier
owes his guests the duty to correct hazards on his property if he knows or should
know of the hazard). See also Bernard v. Village of Andover, 8 A.D.2d 993, 997,
188 N.Y.S.2d 879, 883 (1959) (Halpern, J., dissenting) (imposing duty on police
officers to obtain medical attention for an individual in need, especially where
officers either took the individual into custody or actively interfered with him).
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physical harm to another, he is under a duty to exercise
reasonable care to prevent the risk from taking effect.
... Subsection (1) applies even though at the time of the act
the actor has no reason to believe that it will involve such
a risk."0
This tort compensation theory supports the notion that when a doctor
realizes that harm is foreseeable to one of his patients and knows that
he could prevent or minimize the injury by relaying information to the
patient he is obligated to help preclude the injury.4 The unwary person,
who is literally at the mercy of another due to his reliance upon that
person's knowledge, must be protected.
A.
Existing Duties to Inform or Correct
It is generally recognized that a doctor has the duty to inform his patient
of the risks which may be involved in proposed medical treatment.43 The
40
RESTATEMENT (SECOND) OF TORTS
§ 321 (1965). Comment a states that the
rule applies whether the original act was tortious or innocent. Id. (emphasis added).
See also Scindia v. De Los Santos, 451 U.S. 156 (1981) (there are circumstances
in which the shipowner has a duty to act where a danger arises not of his own
negligence but of which he becomes aware).
" See Yarrow v. Sterling Drug, Inc., 263 F. Supp. 159 (D.S.D. 1967) (drug
manufacturer has a duty to warn medical profession when he knows that some
persons would be injured by a drug's side effects); Tarasoff v. Regents of Univ.
of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (therapist owes duty
to disclose dangerous propensities of patient to his declared victim); Kelly
v. Carroll, 219 P.2d 79 (Wash. 1950) (if a drugless healer knows that his treatment will be of no help to the patient he must tell the patient and if he knows
of a treatment which will work, he must inform the patient of that fact); Tredt
v. Haugen, 294 N.W. 183 (N.D. 1940) (if a doctor discovers that he cannot cure
a person by what he is doing or if he finds out that what he is doing will not
be helpful he has a duty to tell his patient); Cf. Benson v. Dean, 232 N.Y. 52,
152 N.E. 323 (1930) (a doctor may be found guilty of malpractice when he has
a patient who does not improve and he fails to advise the patient to resort to
others with wider experience).
42 See Rowland v. Christian, 69 Cal. 2d 108, 117, 443 P.2d 561, 564, 70 Cal.
Rptr. 97, 100 (1968) (the following factors must be considered when deciding
whether a duty to warn exists: (1) foreseeability or harm; (2) closeness of the
connection between the defendant's conduct and the plaintiffs injuries; (3) the
moral blame attached to defendant's conduct; (4) the policy of preventing future
harm; and (5) the availability of insurance).
" Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064
(1972); Cobbs v. Grant, 8 Cal. 2d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92 (1914), overruled
on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3
(1957); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905). However, it is generally
recognized that the doctor will not have to obtain the patient's consent in an
emergency situation or where the doctor feels that the patient would be emotionally traumatized if he were to be apprised of the possible risks involved in
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PHYSICIAN'S DUTY TO WARN
rationale for the imposition of this duty directly flows from the abovenoted interest in individual decision-making." In order to decide among
the various treatment alternatives proposed by the physician, the patient
must have ample data from which to draw conclusions and formulate a
knowing and intelligent determination.
The patient is entitled to rely upon the physician to tell him what
he needs to know about the condition of his own body. The patient has the right to chart his own destiny, and the doctor must
supply the patient with the material facts the patient will need
in order to intelligently chart that destiny with dignity.45
The duty to inform is "measured by patient's need, and that need is
'
whatever information is material to the decision." The doctrine of informed consent may be used by analogy to impose a duty to follow up.
Assuming, arguendo, that the doctor-patient relationship continues after
initial treatment," it is impossible to say that the patient has consented
to a mode of treatment later found to be negligent unless he is informed
of the subsequent findings. It is clear that once the patient is "in the
dark" regarding the dangers of his medical therapy his original consent
agreement does not encompass the "post-physician notification" treatment.
Under the doctrine of informed consent the physician will be liable for
any injury resulting from treatment rendered without the patient's
knowledge of material risks which, if known, would have compelled the
patient to select an alternative treatment."4 Therefore, by analogy, a doctor should be liable for any injury resulting from treatment or therapy
continued after the doctor has received updated medical information of
which the patient is not apprised, because the patient no longer has the
full range of material risk information to which he is entitled. It goes
without saying that the vast majority of patients would not continue a
mode of therapy found to be dangerous to their health. The disclosure
will result in the patient's selection of another alternative, which may
even amount to a complete discontinuance of medical treatment.
As a result of tort law developments in the products liability field, the
quirements and how the discretion of the doctor undercuts the purpose of the
informed consent requirement, see Glass, RestructuringInformed Consent: Legal
Therapy for the Doctor-PatientRelationship, 79 YALE L.J. 1533 (1970).
" Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).
" Miller v. Kennedy, 11 Wash. App. 272, 522 P.2d 852 (1974), affd, 85 Wash.
2d 151, 530 P.2d 334 (1975) (a plaintiff who alleges that a physician failed to warn
him of material risks inherent in his treatment need not produce expert medical
testimony that the doctor should have told the patient about the risk).
46 Cobbs v. Grant, 8 Cal. 3d 229, 246, 502 P.2d 1, 11, 104 Cal. Rptr. 505, 515
(1972).
47 See infra text accompanying notes 96-103 for a discussion of the duration
of the doctor-patient relationship.
"8Miller v. Kennedy, 11 Wash. App. 272, 522 P.2d 852 (1974), affd, 85 Wash.
2d 151, 530 P.2d 334 (1975).
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manufacturers of most products have various obligations to warn product purchasers. 9 Certain warnings must be given at the time of sale
although there is no "defect" in the construction or design of the product
itself.' Other warnings - post-sale warnings - are often required after the
purchase of the product." It is a reasonable analogy that information given
at the time of sale can be compared to the concept of informed consent,
and post-sale warnings are analogous to the proposed duty to follow up
the treatment of former patients. This Note will now discuss the duty
of issuing point-of-sale warnings and how these warnings are a necessary
supplement to a consumer's sphere of information.
Even though a product is not manufactured negligently, some dangers
may exist even in its proper use. If the manufacturer knows of these
possible dangers he is under a duty to inform the prospective buyer at
the time of sale.52 The rationale behind this duty is extremely similar to
the rationale underlying the doctor's duty to obtain informed consent.
Warnings at the time of sale help the purchaser evaluate the product
and aid him in making an appropriate choice -a selection having the least
dangerous attributes. The process of obtaining a patient's informed consent to treatment allows the patient to assess the various treatment alternatives and permits him to make a selection having the fewest risks.'
Respect for autonomy in decision-making as well as concern for the safety
of patients and consumers is reflected in both products liability and
medical negligence areas.
The existence of a duty to inform naturally includes the requirement
that the information be truthful and complete. When information given
is false or incomplete an action for misrepresentation may be pursued
by the injured plaintiff. Misrepresentation will serve as the basis for a
cause of action in tort as long as the deceitful words or actions are relied
upon by the plaintiff causing him harm.' In some instances, the tort of
misrepresentation takes the form of nondisclosure -a passive, silent fraud
as opposed to an active, deceitful statement or action.55 As a general rule
the nondisclosure, in order to be actionable, must (1) be a half-truth; or
(2) be between a plaintiff and defendant who are in a fiduciary relationFRUMER & M. FRIEDMAN, supra note 37, S 8, at 143-188 (1981).
o See infra text accompanying notes 52-53.
51 See infra text accompanying notes 74-85.
PROSSER, supra note 4, S 96, at 646-47, S 99, at 659. Of course, a manufac'2W.
turer is under no duty to warn a prospective buyer of obvious inherent dangers,
e.g., the sharp edge of a knife.
' See supra text accompanying notes 43-48.
' See RESTATEMENT (SECOND) OF TORTS S 311 (1965). Negligent misrepresentation "finds particular application where it is a part of the actor's business or
profession to give information upon which the safety of the recipient.., depends."
Id. at comment b. See also W. PROSSER, supra note 4, SS 105-110, at 683-736.
W. PROSSER, supra note 4, S 106, at 695.
Id. at 696.
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ship. 7 Some courts have allowed the plaintiff to maintain an action when
the defendant has special knowledge or means of acquiring information
not readily available to the plaintiff.' Concealment of malpractice may
also constitute a cause of action in fraud.59 Nondisclosures in other fields
likewise constitute actions for misrepresentation.
Failure to relay information received subsequent to treatment which
would bear on the patient's well-being closely resembles the nondisclosure
type of misrepresentation. Of course, this kind of misrepresentation would
be the silent, passive form of the tort. Although this is more difficult
to prove than misrepresentation involving deceitful words and actions,
it can be done. First, the plaintiff-patient could analogize the failure to
follow up to a type of half-truth. One sort of half-truth situation is where
one person has made a statement and then acquires new information that
makes the statement false. 1 He is under a duty to "disclose such information to anyone whom he knows to be still acting on the basis of the
original statement ...."I' A doctor who treats a patient and then becomes
aware of new data rendering the previously prescribed treatment unacceptable should be bound to alert this patient since it must be assumed
that the patient still believes that the treatment had only the risks originally described.3
Second, since courts recognize a nondisclosure action when the plaintiff and defendant are in a fiduciary relationship, ' the plaintiff-patient
can demonstrate that he and the physician were fiduciaries. 5
" Id. at 697.
5Id.
5 Simcuski v. Saeli, 44 N.Y.2d 442, 377 N.E.2d 713, 406 N.Y.S.2d 259 (1978).
When a physician commits malpractice and then conceals the fact, the patient
will have a cause of action for the fraud as well as malpractice if the patient
can prove that: 1) the physician knew the fact of the malpractice; 2) the doctor
made material factual misrepresentations to the patient with respect to the subject matter of the malpractice; 3) all elements of the tort of fraud can be proved;
and 4) the conditions caused by the malpractice could have been corrected or
alleviated. Id. Lopez v. Swyer, 115 N.J. Super. 237, 251, 279 A.2d 116, 124 (1971).
modifiwd, 62 N.J. 267, 300 A.2d 563 (1973). But see Millet v. Dumais, 365 A.2d
1038 (Me. 1976) (a physician will be liable for failing to disclose specific acts which,
if known, might give rise to an action for medical negligence); see Vogel, supra
note 25, at 67-69.
See Neel v. Magana, 6 Cal. 3d 176, 491 P.2d 421, 98 Cal. Rptr. 837 (1971)
(attorney failed to disclose malpractice); Hobart v. Hobart Estate Co., 26 Cal.
2d 412, 159 P.2d 958 (1945) (stockbroker concealed wrongdoings).
61
W. PROSSER, supra note 4, S 106, at 696.
Id.
See supra notes 36-37 and accompanying text for a discussion of patient's
lack of access to medical information.
See supra note 54.
Berkey v. Anderson, 1 Cal. App. 790, 804, 82 Cal. Rptr. 67, 77 (1969) (holding
that since the doctor and patient are fiduciaries, the doctor breaches his duty
to disclose if he understates the seriousness of the patient's proposed treatment).
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[Tihe relationship between a doctor and his patient is of such a
confidential and vital nature that an affirmative duty requiring
the doctor to disclose to his patient fully the facts of the medical
case does exist and . . .silence in this regard may be sufficient
to infer a constructive misrepresentation."
Fiduciary relationships require a "full and fair disclosure to the beneficiary
of all facts which materially affect his rights and interests."67 New findings
which would affect a person's physical health fall within this category.
Therefore, when a doctor fails to reveal these newly-acquired material
facts to his fiduciary-his patient-he is guilty of a misrepresentation.
Instituting the proposed duty will allow plaintiff-patients to fashion a cause
of action that would permit recovery for a form of nondisclosure. The
proposition is a natural expansion of the long-standing tort of
misrepresentation.
B.
Existing Duties of Continuing Care
Once the doctor-patient relationship is established 8 the doctor is
negligent if he abandons his patient." The rationale for punishing physicians who abandon their patients is founded upon the belief that patients
depend and rely upon their doctors. The failure of a doctor to up-date
his patients as he acquires new information is tantamount to abandonment." When a patient is abandoned he no longer benefits from the
medical expertise and skill of his doctor; when a physician fails to deliver
new information to his patient, the patient likewise no longer profits from
the medical attention to which he has become accustomed. Furthermore,
See also supra note 59. But cf.Millet v. Dumais, 365 A.2d 1038 (Me. 1976) (doctor
has no obligation to give patient "legal advice" by disclosing malpractice).
Lopez v. Swyer, 115 N.J. Super. 237, 251, 279 A.2d 116, 124 (1971), modified,
62 N.J. 267, 300 A.2d 563 (1973) (a physician has an affirmative duty to disclose
fully the facts of the patient's case; failure to do so may infer a constructive
misrepresentation).
" Neel v. Magana, 6 Cal. 3d 176, 189, 491 P.2d 421, 429, 98 Cal. Rptr. 837,
845 (1971).
" See infra text accompanying notes 96-103.
69 Ascher v. Gutierrez, 533 F.2d 1235 (D.C. Cir. 1976); Murray v. United States,
329 F.2d 270 (4th Cir. 1964); Bolles v. Kinton, 83 Colo. 147, 263 P. 26 (1928); Shapira
v. United Medical Serv., Inc., 15 N.Y.2d 200, 205 N.E.2d 293 (1965). For a discussion of the duration of the doctor-patient relationship, see infra text accompanying notes 96-103.
0 If patients did not rely on their doctor's continuous care and attention they
would have no reason to complain if their doctor suddenly and without warning
had deserted them. Since the courts find abandonment to be objectionable, it
naturally follows that patients have a right to rely upon their physician's continued vigilance.
71 "Continued personal attention may be deemed unnecessary, but the physician must then advise the patient upon his future care and treatment." Murray
v. United States, 329 F.2d 270, 272 (4th Cir. 1964).
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a physician is negligent if he allows intervals to elapse between his visits
when the patient needs attention." This problem has surfaced all too frequently in the area of adverse drug reactions. When the physician does
not schedule a return visit by the patient, he is unable to determine
whether the patient is experiencing a harmful drug response. 3 Whether
a doctor prescribes a drug that may have side effects or receives vital
information regarding new discoveries relating to treatment methods that
he has utilized, it is obvious that his patient needs immediate attention.
Therefore, just as a physician is held liable for abandonment, he should
likewise be answerable when he allows an interval of time to elapse while
his patient remains uninformed about newly discovered dangers in his
previous treatment. Liability for breaching the duty to follow up has roots
in the abandonment theory.
Liability for a form of "abandonment" also exists in the products liability
field. Many courts have held that manufacturers are under a continuing
duty to notify the purchasers of their products when latent defects are
discovered after sale.74 It has been noted that:
the ultimate consequence of this continuing duty once a defect
has been discovered avoids the defense that, when sold, the product was not unreasonably dangerous. Plaintiff is able to reply
that regardless of the care exercised during manufacture or the
state of the art at the time of sale, his claim rests on the manufac72 Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697 (1934); Neudeck v. Vestal,
117 Cal. App. 266, 3 P.2d 595 (1931).
11See Dixon, Drug ProductLiability: Informationfor Safety, 16 TRIAL 62, 66
(1980); Tozer, Medical-LegalAspects of Adverse DrugReactions, 1970 L. MED. ANN.
245, 257.
14 See Schenebeck v. Sterling Drug, Inc., 423 F.2d 919, 922 (8th Cir. 1970), cert.
denied, 400 U.S. 829 (1970) (possible effects and latent dangers of drugs); Braniff
Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451, 453 (2d Cir. 1969), cert. denied,
396 U.S. 959 (1969) (aircraft); Noel v. United Aircraft Corp., 342 F.2d 232 (3d Cir.
1965) (aircraft); doCanto v. Ametek, Inc., 367 Mass. 776. 782. n.9, 328 N.E.2d 873,
879, n.9 (1975); Comstock v. General Motors Corp., 358 Mich. 163, 176, 99 N.W.2d
627, 634 (1959) (products hazardous to life). See generally Patterson, Products
Liability: The Manufacturer's Continuing Duty to Improve His Product or Warn
of Defects After Sale, 62 ILL. B.J. 92 (1973) (historical overview demonstrating
courts' growing strictness in the application of the continuing duty to warn consumers); Comment, Products Liability: Post-Sale Warnings, 1978 ARIz. ST. L.J.
49 (the factors to look at regarding post-sale warnings are: (1) the magnitude of
the potential consequences; (2) the difficulties of providing the warning; and (3)
the seller's degree of negligence in the creation of the dangerous condition. In
determining whether the post-sale duty to warn will be excessive, the following
elements must be weighed: (1) the number of products sold; (2) the records normally kept by a seller of its purchases; (3) the continuing relationship between
seller and user; and (4) the length of time since the sale).
Statutory requirements calling for the notification of consumers regarding
latent defects in certain goods are found in 15 U.S.C. S 1418 (1976 & Supp. V
1981) and 46 U.S.C. S 1451 (1976).
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turer's failure to take additional steps to protect or warn the public
of the defect."5
In fact, many of these warnings are accompanied by court-mandated7 or
statute-mandated 7' recalls. Some courts have even gone as far as imposing a continuing duty on manufacturers to improve their products by
upgrading safety devices. 8 Once a safety improvement has been developed
it has been proposed that the manufacturer is under an obligation to notify
product users of the subsequent safety advancement.79 However, this new
duty may be limited to those products not mass-produced.'
The duties of issuing post-sale warnings and notifying consumers of
subsequent safety improvements mirror the proposed physician's duty
to follow up on his patients' treatment. Both of these products liability
obligations deal with items which at the time of sale were not known
to require extra point-of-sale warnings and were thought to be made as
safely as possible. It is at a later date that the manufacturer becomes
aware either that latent defects have been discovered or that superior
safety features have been developed. This parallels a physician's treat-
" Patterson, supra note 74, at 92.
78 See United States v. K-N Enterprises, Inc., 461 F. Supp. 988 (N.D. Ill. 1978)
(where drug was misbranded or unapproved and where it was likely that harm
would result by the continued distribution of the drug, an injunction would issue
requiring the recall of the drug); see generally Fleming, The Duty of Manufacturer
to Recall Aircraft, 45 J. AIR L. & CoM. 518 (1980) (stressing the important interest that the aviation community has in assuring that aviation manufacturers
promptly advise users of defects in their products discovered after sale).
" See 15 U.S.C. S 1411 (Supp. V 1975); 15 U.S.C. S 2064 (1972). Note, Mandatory Food and Drug Recalls-An Analysis of a Developing FDA Enforcement
Tool, 1980 UTAH L. REV. 809; Werber, Automobile Recall Campaigns:Proposals
for Legislative and JudicialResponses, 56 U. DET. J. URB. L. 1083 (1979) (discusses
National Traffic and Motor Vehicle Safety Act of 1966 and proposed amendments;
proposes viable products liability defenses based on owner's failure to comply
with the recall).
78 Noel v. United Aircraft Corp., 342 F.2d 232, 237 (3d Cir. 1964); cf. Complaint
of Bankers Trust Co., 651 F.2d 160 (3d Cir. 1981) (shipowner has a duty to use
reasonable means to acquire knowledge calculated to inform him of conditions
likely to produce or contribute to unseaworthiness. "He must create reasonable
procedures for identifying the need for repairs and relaying reports of ship conditions to shoreside management." Id. at 171).
" Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 275 N.W.2d 915
(1979) (technological advancement in sausage stuffer); see Note, The Manufacturer's
Duty to Notify of Subsequent Safety Improvements, 33 STAN. L. REV. 1087 (1981).
But see Jackson v. New Jersey Mfrs. Ins. Co., 166 N.J. Super. 448, 400 A.2d 81
(1979) (no duty to alert customers of safety improvements in operation of rubber
mills).
I Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d at 901, 275 N.W.2d at
923-24. The court expressed concern over the excessive costs of notifying large
numbers of consumers.
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ment which was chosen after relevant information regarding risks was
revealed to the patient"1 and at the time was administered as safely as
possible. 2 Some time after treatment the doctor is apprised either that
the treatment once thought to be acceptable no longer meets the requisite
standard of care or that a safer method for treatment administration has
been approved and is in use. The limit placed on a manufacturer's postsale warning duty regarding mass-produced goods probably would not
affect the proposed physician's duty since most doctors do not aid vast
numbers of patients with the same treatment.8
The reason for imposing post-sale warning duties on manufacturers is
to provide consumers with current information regarding safety improvements which is not readily available to purchasers." This purpose
correlates with the above-discussed fact that patients have less access
to medical literature than do their physicians.85 The concern for safety requires the imposition of post-sale duties; the interest in health maintenance
necessitates a mandatory post-treatment obligation for physicians.
Other professionals also may have an analogous duty of continuing care.
For example, an attorney may be made aware of changes in the law that
would affect his client's interests, thus triggering a duty to contact his
client in order to make necessary changes. 6 In addition, if a conflict of
interest is brought to an attorney's attention, he is under a duty to correct the situation. 7 Moreover, a prosecutor is under a duty to correct
the testimony of a witness if he knows it to be false." The importance
of correcting misleading or incomplete information is demonstrated by
81 See supra notes 43-48 and accompanying text for a discussion of informed
consent.
I If the physician failed to meet the recognized standard of care at the time
of treatment it is obvious that the patient has a cause of action for medical
negligence.
Therefore, the cost concerns that the court recognized in Kozlowski v. John
E. Smith's Sons Co., 87 Wis. 2d at 901, 275 N.W.2d at 923-24, would not be relevant.
", Note, supra note 79, at 1090-93. But see Epstein, Products Liability: The
Searchfor the Middle Ground, 56 N.C.L. REV. 643 (1978). The trend in products
liability case law is towards stricter standards for warnings and instructions. The
rationale for this is based on the false assumption that "the individual product
user ... does not have and cannot obtain or act upon information from sources
other than the manufacturer." Id. at 653.
See supra notes 36-37 and accompanying text.
Sutherland v. Sutherland, 192 Va. 764, 767, 66 S.E.2d 537, 542 (1951) (changes
in probate law are systematically referred to clients whose wills are in the attorney's care).
., 101 S.Ct. 2301 (1981) (Burger,
- U.S.
87 In re Benjamin R. Patterson,
C.J., dissenting).
"8Napue v. Illinois, 360 U.S. 264 (1959) (the failure of a prosecutor to correct
the testimony of a witness which he knew to be false denied the petitioner due
process of law in violation of the 14th Amendment).
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Rule 26 of the FEDERAL RULES OF CIVIL PROCEDURE which outlines the
requirements for supplementing discovery responses.89
Accountants, likewise, are under a continuing duty to correct errors
in financial statements that are discovered at a later date. 0 The administrator of an estate must correct errors in the decedent's tax return
when he becomes aware of them." A corporation's management must correct errors or false rumors that can be attributed to the corporation when
the mistaken information surfaces in the market-place" or appears in the
press. Employers' have a duty to notify their bonding companies and
bailees95 have an obligation to notify their bailors upon discovery of new
information that relates to the agreement or contract between them.
The foregoing review of existing tort duties demonstrates that a court
will find great support for a duty to follow up previous treatment plans.
Each of the duties discussed is compatible with the proposed liability expansion. When the concern for health information is combined with the
fiduciary duties arising from the doctor-patient relationship, the outcome
strongly suggests the necessity for courts to impose a continuing duty
upon physicians to inform their patients of new, significant medical
findings.
89 FED. R. Civ. P. 26(e) requires supplementation of discovery responses: (1)
when the party becomes aware of the identity and location of persons with
knowledge of discoverable material; (2) when the party decides to call an expert
witness at trial; (3) when the party realizes that the original discovery response
was incorrect when made; (4) when the party knows that the original response
is no longer true; (5) when ordered by the court or agreement of the parties.
The situation in (4) is directly analogous to the situation where a physician finds
out that his original treatment is no longer acceptable.
9 Redington v. Touche Ross & Co., 612 F.2d 68, 73 n.7 (2d Cir. 1979) (while
it may be true that accountants have a continuing duty to correct any errors
in prior financial statements, such continuing duty cannot operate to make every
one of a firm's subsequent audits the same "transaction or occurrence" referred
to by FED. R. CIV. P. 13(a)).
"' Glaze v. United States, 641 F.2d 339, 342 (5th Cir. 1981) (decedent's administrator has a duty to correct the decedent's tax return to reflect the decedent's proper marital status).
92 See State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 850 (2d
Cir. 1980) (a company might involve itself so much in the preparation of reports
and projections by outsiders as to assume a duty to correct material errors in
those projections).
13See Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937,
949 (1969) (while a corporation may choose to correct a misstatement in the press
not attributable to it, the Securities Exchange Act of 1934 does not require a
corporation to do so).
1, USLIFE Sav. & Loan Assoc. v. National Surety Corp., 115 Cal. App. 2d
336, 345, 171 Cal. Rptr. 393, 398 (1981) (citing Tresemer v. Barke, 86 Cal. App.
3d 656, 150 Cal. Rptr. 384 (1978)).
" Allan v. Bekins Archival Serv. Inc., 91 Cal. App. 2d 835, 154 Cal. Rptr. 458
(1979) (citing Tresemer v. Barke, 86 Cal. App. 3d 656, 150 Cal. Rptr. 384 (1978)).
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III.
ELEMENTS OF THE DUTY TO FOLLOW UP
A.
The Prima Facie Case
When the courts adopt the proposed cause of action for breaching the
duty to follow up, the plaintiff will have to prove the following elements
in order to establish a prima facie case: (1) that a doctor-patient relationship existed between the plaintiff and defendant; (2) that during the existence of that relationship the doctor received notice of a newly
discovered danger in the mode of treatment, rendering that treatment
below the requisite degree of care; (3) that the doctor did not notify or
attempt to notify the patient regarding this new discovery; and (4) that
as a result of the failure to notify, the patient suffered injury.
The existence of a doctor-patient relationship is established when a
physician begins to see a patient on a professional basis. The physicianpatient relationship "springs from a consensual transaction, a contract,
express or implied, general or special."96 It is not difficult to show that
a doctor-patient relationship has been initiated; however, it may be difficult to prove that the doctor-patient relationship was actually in force
at the time when the doctor received notice regarding newly discovered
dangers in his method of treatment. 7 It is generally recognized that the
doctor-patient relationship lasts until: (1) it is ended by mutual consent;"
or (2) the physician withdraws after giving reasonable notice to the
patient;" or (3) the physician is dismissed by the patient;" ® or (4) the physician's services are no longer needed;" 1 or (5) an equally qualified doctor
replaces the withdrawing physician.0 2 If the doctor dismisses the patient
for any other reason and the patient is thereby injured, the doctor may
Lyons v. Grether, 218 Va. 630, 632, 239 S.E.2d 103, 105 (1977). See also Ahnert
v. Wildman, 376 N.E.2d 1182 (Ind. Ct. App. 1978) (the law of contract governs
the rights and liabilities of the doctor-patient relationship and the doctor-patient
relationship does not extend to filling out the patient's medical insurance forms).
97Hagman, supra note 25, at 771. This article states that in some respects
a physician-patient relationship is a continuing relationship; "Continued personal attention may be deemed unnecessary, but the physician must then advise
the patient upon his future care and treatment." Cf.Murray v. United States, 329
F.2d 270, 272 (4th Cir. 1964).
9 Lyons v. Grether, 218 Va. 630 at 633, 239 S.E.2d at 106; Sibert v. Boger,
260 S.W.2d 569, 572 (Mo. 1953). Both cases discuss the various methods for terminating the doctor-patient relationship. It does appear that most methods require
initiation by either the doctor or his patient. Relying on a "passive termination"
could result in legal consequences for the doctor.
Lyons v. Grether, 218 Va. at 633, 239 S.E.2d at 106; Sibert v. Boger, 260
S.W.2d 569, 572 (Mo. 1953).
" Sibert v. Boger, 260 S.W.2d at 572.
101Ascher v. Gutierrez, 533 F.2d 1235, 1236 (D.C. Cir. 1976); Lyons v. Grether,
218 Va. at 633, 239 S.E.2d at 106; Sibert v. Boger, 260 S.W.2d at 572.
102 Ascher
v. Gutierrez, 533 F.2d at 1236.
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be sued for abandonment."3 In a suit based upon the proposed duty to
follow up, the focus will be on the fourth method of terminating the doctorpatient relationship stated above and the burden of proof will be on the
plaintiff-patient to demonstrate that the services of the doctor were still
needed. The Tresemer court allowed the plaintiff-patient to state a cause
of action even though she apparently had not maintained a continuous
visitation relationship with her gynecologist.' Therefore, a court must
assume that the services of the doctor are still necessary when he receives
notification of any dangers in his patient's treatment.
The plaintiff will be able to show the existence of a doctor-patient relationship if (1) he did not consent to a termination; (2) he did not receive
notice of the doctor's withdrawal; (3) he did not dismiss the physician from
his case; and (4) his case was not taken over by another doctor.
After the plaintiff has established the existence of a doctor-patient relationship, he must show that during this relationship the physician received
notice of a newly discovered danger in the mode of treatment. There are
various ways in which a doctor can obtain the newest information about
current medical trends. First, he may receive a "Dear Doctor" letter from
a drug manufacturer or other health appliance provider. These letters
often signal new scientific findings and warnings to which the doctor must
pay attention and use with his current practice procedures. Second, a
drug or appliance salesman or detailman may visit the physician and pass
on the new information during his visit. Again the doctor must treat this
information seriously since the salesman presumably has superior intimate
knowledge of his product. Third, the physician may acquire knowledge
via continuing studying and reading of the latest medical journals. Last,
the doctor may discover new warnings while studying a recent edition
of the Physician'sDesk Reference, an annual reference book designed to
inform doctors of the various attributes of prescription and nonprescription drugs. If the patient can show that his doctor received a warning via any method including the four listed above, he has met the burden
of proof required for establishing the second element in the prima facie
case.
The plaintiff must also show that the doctor did not notify him of the
new findings. This will be a simple question of fact for the jury.
Finally, in order to state a cause of action for breaching the duty to
follow up, the patient will have to prove that he sustained an injury as
a result of the physician's breach. In most cases the harm actually will
be the additional injury to the patient as a result of the breach, i.e., the
amount of compensation will be limited to only those injuries sustained
after the warning was received and after a reasonable time elapsed in
order to notify the patient. Injury as a result of the initial treatment will
not satisfy this element unless it can be shown that the initial injury was
,03For a discussion of abandonment, see supratext accompanying notes 68-73.
104Tresemer v. Barke, 86 Cal. App. 3d 656, 150 Cal. Rptr. 384 (1978).
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compounded by the lack of notification or unless the patient can prove
that, had he known earlier, corrective measures that would have halted
the onset of further harm could have been instituted.
B.
Defenses
If the above-stated elements are established the plaintiff will prevail
unless the defendant-doctor can rely successfully on one of the following
defenses: (1) the patient was contributorily negligent; (2) the warning to
the doctor was eroded by the manufacturer's overpromotion of the drug
or device; (3) due diligence did not result in the location of the patient;
or (4) the physician used his discretion in deciding not to notify the patient of the new findings.
The contributory negligence of the patient will be examined by the
5
court in determining whether a possible defense exists for the doctor.'
'05In a pure comparative negligence jurisdiction the contributorily negligent
plaintiffs recovery is reduced in proportion to the amount of negligence attributed
to the plaintiff. As of 1981 six jurisdictions have statutes mandating a pure com-
parative negligence system: Lousiana, LA. CIv. CODE ANN. art. 2323 (West 1979);
Mississippi, MIss. CODE ANN. S 11-7-15 (1972); New York, N.Y. CIv. PRAC. LAW
SS 1411-13 (McKinney 1975); Puerto Rico, P.R. LAWS ANN. tit. 31, S 5141 (1956);
Rhode Island, R.I. GEN. LAWS SS 9-20-4 to 4.1 (1972); Washington, WASH. REV.
S 4.22.010 (1973).
Another five states have judicially adopted pure comparative negligence:
Alaska, Kaatz v. State, 540 P.2d 1037 (Alaska 1975); California, Nga Li v. Yellow
Cab Co., 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975); Florida, Hoffman
v. Jones, 280 So. 2d 431 (Fla. 1973); Michigan, Placek v. City of Sterling Heights,
405 Mich. 638, 275 N.W.2d 511 (1979); New Mexico, Scott v. Rizzo, 96 N.M. 682,
634 P.2d 1234 (1981).
The most popular comparative negligence system is a "fifty percent" system.
The following have adopted a form of this system where contributory negligence
will bar a plaintiff if it is either equal to or greater than the negligence of the
defendant: Arkansas, ARK. STAT. ANN. SS 27-1763 to 27-1765 (1975); Colorado,
COLO. REV. STAT. S 1331-111 (1975); Georgia, GA. CODE ANN. SS 94-703, 105-603
(1855); Idaho, IDAHO CODE SS 6-801 t6 6-806 (1971); Kansas, KAN. STAT. ANN.
S 60-258(a)-(b) (1976); Maine, ME. REV. STAT. ANN. tit. 14, S 156 (1971); North
Dakota, N.D. CENT. CODE S 9-10-07 (1973); Utah, UTAH CODE ANN. SS 78-27-37
to 78-27-43 (1973); Wyoming, WYO. STAT. S 1-1-109 (1977). West Virginia judicially
adopted this fifty percent comparative negligence system. Bradley v. Appalachian
Power Co., 256 S.E.2d 879 (W. Va. 1979).
In the following jurisdictions the plaintiff's negligence will bar his claim only
CODE ANN.
if it is greater than that of the defendant: Connecticut, CONN. GEN. STAT. ANN.
S 52-572(h), (i), (1) (West 1977); Hawaii, HAWAII REV. STAT. S 663-31 (1976);
Massachusetts, MASS. GEN. LAWS ANN. ch. 231, S 85 (West 1973); Minnesota,
MINN. STAT. ANN. SS 604.01-.02 (West 1978); Montana, MONT. CODE ANN.
SS 27-1-702 to 27-1-703 (1977); Nevada, NEV. REV. STAT. S 41.141 (1979); New Hampshire, N.H. REV. STAT. ANN.
S
507:7-a (1970); New Jersey, N.J. STAT. ANN.
55
2A:15-5.1 to 2A:15-5.3 (1973); Ohio, OHIO REV. CODE ANN. S 2315.19 (Page 1980);
Oklahoma, OKLA. STAT. ANN. tit. 23, S 13 (West 1979); Oregon, OR. REV. STAT.
S5 18.470-.510 (1975); Pennsylvania, PA. STAT. ANN. tit. 42, 5 7102 (Purdon 1978);
Texas, TEX. CIV. CODE ANN. Art. 2212a, SS 1-2 (1973); Vermont, VT. STAT. ANN.
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Since negligent acts on the part of the plaintiff will have a serious effect
on the amount of his recovery, the various forms of patient negligence
will be examined closely. First, a patient is under a duty to cooperate
with his doctor. ' If the doctor can show either that the patient did not
follow instructions'0 7 or failed to return to the physician when advised' 0
the court might be able to conclude that the patient had terminated his
relationship with the doctor, thus negating the first element in the prima
facie case.'0 9 However, if the court believes that the patient's failure to
cooperate did not extinguish the doctor-patient relationship, it is most
likely that the defense attorney would be unable to prove that the doctor's failure to notify the patient was due to the lack of the patient's
cooperation. It would not be enough for the defense attorney to show
merely that the plaintiffs negligence made his injury worse; rather, the
plaintiffs contribution must be tied to the doctor's failure to follow up.
It seems that this defense rarely would be successful. Even in cases where
the patient did not return to the doctor when advised, the doctor would
still be able to furnish follow-up information by phone or letter.
Second, a patient could fail to inform the doctor of his address or phone
number."0 That type of negligent behavior on the part of the patient is
directly related to the failure of the physician to follow up on the patient's treatment since the doctor would be unable to relay warnings to
the patient. This dimension of the contributory defense would seem to
be the most successful; however, it is unlikely that the patient would refuse
to give the doctor his address and telephone number.
Third, in those jurisdictions which still recognize implied assumption
tit. 12, S 1036 (1979); Virgin Islands, V.I. CODE ANN. tit. 5, S 1451 (1973); Wisconsin, WIS. STAT. ANN. S 895.045 (West 1971).
Two states allow the plaintiff to recover fully as long as his negligence is slight
and the defendant's negligence is gross: Nebraska, NEB. REV. STAT. S 25-1151
(1978); South Dakota, S.D. CODIFIED LAWS ANN. S 20-9-2 (1964).
The remaining twelve states bar the plaintiff from recovery where he is found
to have been negligent in any degree. For a thorough discussion of comparative
negligence systems, see V. SCHWARTZ, COMPARATIVE NEGLIGENCE (1974 & Supp.
1981).
,06 Skar v. City of Lincoln, 599 F.2d 253, 260 (8th Cir. 1979); Brazil v. United
States, 484 F. Supp. 986, 991 (N.D. Ala. 1979); Meacham v. McLeay, 193 Neb. 457,
227 N.W.2d 829 (1975).
107 Watkins v. United States, 589 F.2d 214, 225 (5th Cir. 1979) (Skelton, J.,
dissenting).
108
Gerber v. Day, 119 Cal. App. 446, 6 P.2d 535 (1931) (a doctor is not liable
for medical negligence where patient failed to return to physician for further
treatment as advised).
109 For a discussion of the termination of the doctor-patient relationship see
supra text accompanying notes 96-103.
"10
Cf. Ray v. Wagner, 286 Minn. 354, 357, 176 N.W.2d 101, 104 (1970) (discussing the physician's duty to notify his patient regarding the patient's test results).
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of the risk as a complete bar to recovery"' or as a form of contributory
negligence,' 2 only those risks that are unreasonable should be allowed
to stand as a defense.'' 3 For example, it would be an unreasonable assumption of the risk if the patient failed to take any steps after the doctor
notified him that his previous treatment was no longer acceptable.
Therefore, the patient should not be allowed complete recovery for his
injuries. However, it would not be unreasonable if the patient failed to
take any action after merely reading about the danger of his past treatment in a magazine or newspaper. The patient must not be expected to
take on the doctor's responsibilities; he may wait until he is notified by
his physician before seeking an alternative treatment.
The second defense, erosion of the warning due to the overpromotion
of the drug, has been successful in several areas of malpractice litigation.'"
The court in Stevens v. Parke, Davis and Co."' held that "an adequate
warning to the medical profession may be eroded or even nullified by
overpromotion of the drug through a vigorous sales program which may
have the effect of persuading the prescribing doctor to disregard the warnings given.""' 6 If the defense attorney can show that the drug or device
was overpromoted, the court may hold that the plaintiff failed to state
a cause of action for breach of duty to follow up because the second element of the action (doctor's receipt of the warning) was nullified. However,
the patient should be free to take legal action against the manufacturer
since the manufacturer's actions 7resulted in a failure to comply with the
products liability requirements.'"
The third defense, failure to locate the patient, would require the docI" Although the following states have adopted a form of comparative negligence,
implied assumption of the risk is still a total ban to recovery: Arkansas, Georgia,
Mississippi, Nebraska, Rhode Island and South Dakota. V. SCHWARTZ, supra note
105, at S 9.3. In a jurisdiction where contribution is an absolute defense courts do
not have to distinguish between contributory negligence and assumption of the
risk.
"' Those states allowing contributory negligence to be used in reducing plaintiffs damages most likely will also allow an unreasonable implied assumption of
the risk to be used in reducing plaintiffs damages. V. SCHWARTZ, supra note
105, at S 9.4.
,' For policy reasons an implied assumption of a reasonable risk will in all
probability not be used to reduce the plaintiff's recovery when he acts in a
reasonable manner, even though he encounters a risk. Id. at S 9.1.
".. Stevens v. Parke, Davis and Co., 9 Cal. 3d 51, 507 P.2d 653, 107 Cal. Rptr.
45 (1973), relying on Love v. Wolf, 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 (1964)
(manufacturer may not be able to rely on learned intermediary theory to escape
liability for drug dangers if the drugs have been overpromoted to the physician).
"1
Id.
Id. at 65, 507 P.2d at 661, 107 Cal. Rptr. at 53.
Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. 1970), cert. denied,
400 U.S. 829 (1970).
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tor to show that he made a good faith effort, using due diligence, to locate
the patient. Many factors must be evaluated in order to determine whether
the doctor's efforts to locate the patient meet the requisite standard of
care. It is imperative that the doctor issue personal notices as opposed
to ads in a newspaper, for example. Although media notices are accepted
for many legal purposes, where an individual's health is concerned the
doctor must not rely upon the mere chance that his patients would read
the general warning. The preferred method-from the standpoint of expense and probability of success-would be for the physician to mail a
letter to the patient's last known address explaining the new warning.
The envelope should bear the doctor's return address along with notations instructing the post office to forward if possible and return the letter
if unable to forward. To prevent the patient from discarding the letter
without reading its contents, the envelope should indicate that the message
inside is very important. The letter should instruct the patient to notify
the doctor upon receipt of the message so that the physician knows that
his efforts have been successful. If within a reasonable time (ten to fourteen days, for instance) the doctor has not been contacted by the patient
he should attempt to phone the patient or issue another letter. If the
physician still does not succeed in contacting the patient he should send
a telegram or a registered letter if the hazard warrants this special
attention." ' At this point the doctor has met the requisite standard of
care and may invoke his efforts as a defense.
The last defense is based upon the physician's use of discretion in choosing not to warn the patient. The doctor is given room for discretion in
obtaining informed consent. Therefore, in an emergency situation'19 or
when it appears that the patient would be emotionally traumatized by
the information,' the doctor is excused from revealing the material risks
to his patient. This discretion may carry over to the duty to follow up.
As far as what information must be relayed to the patient, it seems logical
to use the same standard used in informed consent cases, that is, the
material risk standard.' Therefore, if the reasonable person would take
the information into consideration when making a decision to pursue a
treatment alternative, the information is deemed material and the doctor
is under a duty to pass it along to his patient. As a guideline for the
physician, it is reasonable to conclude that any treatment method found
to be below the standard of care is definitely material information about
,16 Due to the cost of these measures the physician could use his discretion
in determining whether another method might be equally satisfactory in the situation. Of course, if the foreseeability of serious danger is extreme (for example,
the possibility that a patient who is a pilot could lose consciousness due to a defective prescription) the physician is expected to incur these expenses.
119 See supra note 43.
120 Id.
"' Miller v. Kennedy, 11 Wash. App. 272, 522 P.2d 852 (1974), affd, 85 Wash.2d
151, 530 P.2d 334 (1975).
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which the patient must be informed." When it appears rather certain
to the doctor that the patient would suffer a detrimental effect in response
to the new warning, the physician may use his discretion in deciding
whether to inform the patient. It would have to be shown that the effect
on the patient would be worse than the danger in allowing the patient
to remain uninformed about the new findings.'23
IV.
POSSIBLE OBJECTIONS TO THE DUTY TO FOLLOW UP
There exists a group of possible objections to the imposition of a duty
for the physician to relay follow-up information to his patients. Those
opposed to this proposed duty could suggest: (1) that the record-keeping
necessitated by this duty would invade the patient's privacy expectations;
(2) that this duty has the effect of imposing a strict liability standard on
the medical profession; (3) that carrying out the duty to follow up would
be extremely expensive; (4) that the doctor would be forced to admit
malpractice; and (5) that the doctor's practice would be damaged by his
admission that his previous treatment method was dangerous.
A.
Record-Keeping and the Concern for Privacy
124
Other areas in the tort field require extensive record-keeping.
However, the proposed duty would necessitate a very detailed record
procedure that could be extremely burdensome to the solo practitioner.
It seems entirely possible that physicians would be forced to pool their
patient records in a computer system.121 Of course, this requires resolving
the issue of the privacy of medical records. It is generally agreed that
information about one's body is matter that the patient has a right to
keep private."' Because of this belief, it is very difficult to obtain access
However, where a prescription drug is found to have possible immediate
effects and the patient's prescription has already expired it would be useless
for the doctor to issue a warning since the danger period would have passed.
12 The doctor might be able to explain the warning to the patient's family
thereby dispensing the facts without harming the patient's emotional well-being.
124 49 C.F.R. S 573 (1980) (specifies requirements for manufacturers to maintain lists of purchasers and owners of registered vehicles for the purpose of sending
notices, bulletins and warnings); See Whalen v. Roe, 429 U.S. 589 (1976) (discusses
New York statute designed to control traffic of dangerous drugs by requiring
prescription information to be computer processed). See also Comment, supranote
74, at 57.
2 See generally Miller, Computers, Data Banks & Individual Privacy: An OvervieW, 4 COLUM. HUM. RTS. L. REV. 1 (1972) (discussing the need to develop greater
sensitivity to the dangers of information abuse since it is generally recognized
that personal privacy is fundamental to individual autonomy).
" United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980)
(employee's medical records fall within the category of materials entitled to privacy
protection; however, governmental interests might exist which could require
records to be disclosed).
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to medical files. 17 However, courts have allowed disclosure of medical
records when there is a sufficient governmental interest. In United States
v. Westinghouse," the court stated that "[iun the cases in which the court
has allowed some intrusion into the zone of privacy surrounding medical
records, it has usually done so only after finding that the societal interest
in disclosure outweighs the privacy interest on the specific facts of the
case.""' In viewing privacy interests the courts have looked at the interest in developing treatment programs," the need to control public
health threats, 8 ' the degree and nature of the harm involved if the information was disclosed,"2 the degree of intrusion,"' the possibility of obtaining necessary medical and psychological information" and the degree
of embarrassment or stigma that might befall the patient."5
Society as a whole has much to gain from prompt attention given to
medical problems. 8 When a person is exposed to possible harm and followup medical attention could prevent further injury, there is a substantial
governmental interest that would outweigh the patient's personal privacy
17 Id. at 577; Freedom of Information Act, 5 U.S.C. S 552 (1976) (exemption
six removes FOIA's mandatory disclosure requirement for personnel, medical and
similar files); FED. R. Civ. P. 35 (Rule 35 requires a showing of "good cause" in
order to subject a party to a physical or mental examination as a discovery process, as opposed to other discovery techniques which do not require a showing
of "good cause.").
128638 F.2d 570 (3d Cir. 1980) (the National Institute for Occupational Safety
would be allowed to examine employee medical records if the employees were
given adequate notice; the rationale given for this inspection was the strong public
interest in facilitating medical research).
1 Id.at 578.
130 Id.
131 Id.
12 Kurzon v. Dept. of Health & Human Serv., 649 F.2d 65, 69 (1st Cir. 1981)
(disclosure of names of unsuccessful applicants for cancer research grants could
not be withheld since the information was not sufficiently private and the degree
of potential harm was so very minimal).
"3 Id.
H.L. v. Matheson, 450 U.S. 398 (1981) (parents of minor child could be told
about their child's request for an abortion).
135Id.; cf. Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981) (disclosure of benefits
received by kidnap victim). But cf. Department of Air Force v. Rose, 425 U.S.
352 (1976) (disclosure of case summaries of honors and ethics hearings was not
allowed due to public interest concerning Air Force Academy's discipline
administration).
136 In a financial sense, prompt medical attention would be an effective means
of lowering insurance settlements, disability payments and the like because many
potential health problems could be caught before permanent disabling damage
would occur. Also, for security reasons, a nation would want its citizenry to be
as healthy as possible in order to defend itself in times of unrest. Lastly, many
societies view the issue of prompt health care as a matter of pride-sick people
cannot fight for their own cause so the nation, as a matter of self-esteem, takes
responsibility for providing medical aid.
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interests. Apparently, disclosure of these medical records to the proper
agencies would allow warnings and notices to be passed along to patients
who could take immediate steps to curtail further injury. Of course, indiscriminate disclosure of medical files would not be allowed. A security
provision to insure the protection of the individual's privacy interest may
be required to permit such an examination of medical records. 7
The Supreme Court expressed concern for security provisions with
regard to personal data in Whalen v. Roe: 38 "We are not unaware of the
threat to privacy implicit in the accumulation of vast amounts of personal
information in computerized data banks or other massive governmental
files." '39 However, the Court went on to hold that if it can be shown that
the data system has ample security provisions it will not be an invasion
of the fourteenth amendment."' The concern for security will definitely
increase in this situation. Computer data banks for this purpose will be
required to employ some form of security administration.
B.
Imposition of Strict Liability
Physicians generally are held to the standard of care equal to that used
by competent members of the profession."' The fact that a medical treatment has an unsuccessful outcome will not subject the physician to liability
unless it can be shown that the doctor used a therapy method which is
not accepted by the medical profession or that the doctor actually contracted to cure the patient.
Opponents of the proposed duty may argue that this duty will have
the actual effect of imposing strict liability upon members of the medical
community."" The rationale behind this misguided argument is the notion that no matter what safety precautions the doctor would take, he
might still find himself liable for injuries resulting from previous treatment that was non-negligent. The fallacy of this argument is easily exposed. The proposal does not call for physician's liability for the initial
137 General Motors Corp. v. National inst. for Occupational Safety, 636 F.2d
163, 166 (6th Cir. 1980) (employee medical records could be disclosed with proper
security administration).
'"1 429 U.S. 589 (1976) (the court identified tax collection, supervision of public
health, distribution of welfare and social security benefits, direction of the Armed
Forces and enforcement of criminal laws as all requiring the use of computers
to store vast quantities of information that would be potentially embarrassing
or harmful to the individual were it to be indiscriminately disclosed).
139 Id. at 605.
Id. at 605-06.
'. See W. PROSSER, supra note 4, S 32, at 162.
'.. The imposition of strict liability is usually found in the areas of products
liability and unreasonably dangerous activities. Strict liability calls for liability
regardless of the safety measures taken or the standard of care used. Defendants are held legally at fault, in spite of the fact that they are blameless. Id.
§S 75-81. See RESTATEMENT (SECOND) OF TORTS S 402A (1965).
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treatment now found to be negligent. Rather, the duty only imposes an
obligation to notify patients of new findings. This is not retroactive liability. A finding of negligence will be based upon the failure to follow up,
not upon a finding that the doctor was negligent in failing to foresee that
the initial treatment would someday be found to be below the requisite
standard of care.
In order to protect himself from liability, the physician must merely
treat his patients with the care expected of the medical profession and,
in turn, notify his patients when he becomes aware of dangers in his past
treatment method. The physician will not become strictly liable for future
injuries resulting from therapy later found to be negligent, as long as
he notifies his patients so that they may take measures to prevent further injury.
C.
Expense of Patient Recall
Opponents of the proposed follow up obligation might argue that the
cost of this duty would be extremely burdensome to the physician. It
is true that the "recall" campaigns -notification systems embodying the
spirit of the proposed duty-of the recent past have been very expensive."" However, the cost of these recalls for mass-produced items has
included television air time, newspaper space and bulk mailings. The individual physician would have the duty to notify a much smaller group;
therefore, the need for media campaigns would simply not arise. Although
the cost would vary widely, depending on the ease with which previous
patients could be located and the number of patients to be notified, the
cost involved would be well worth incurring. No doubt many of the warnings would actually result in a net income for the physician since a percentage
of patients would probably return to the same doctor for corrective treatment or for an alternative therapy prescription.' These warnings to
previous patients would not amount to advertising or solicitation even
though doctors may realize some future "business" from them.
Physicians would not be required to "go to the ends of the earth" searching for their previous patients. An attempt to locate the patient is required and the physician will be able to satisfy that requirement by phone
calls, letters and perhaps a telegram in a rare case. If all normal, relatively
inexpensive modes of communication are exhausted and no patient is
"I For example, Firestone spent almost $2 million in the recall notification
for the Firestone 500 tire. Tire Recall: Hearings of H.R. 1744 and 3949 Before the
Subcomm. on ConsumerProtectionand Financeof the House Interstateand Foreign
Commerce Comm., 96th Cong., 1st Sess. 12 (1979).
144Patients would not be entitled to "free" corrective treatment since the doctor's duty only encompasses the obligation to warn of subsequent safety measures,
not the duty to warn and correct. The duty to warn and correct does exist in
many of the recall campaigns for products, thereby making the recall a very expensive, money-losing venture.
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located, the physician would be free to invoke his efforts as an affirmative
defense." 5 Undoubtedly, the maintenance of good patient records with
a method for updating this data would greatly aid in the task while reducing expenses at the same time. 4 '
D.
Doctor's Admission of Malpractice
Those opposed to the imposition of a duty to follow up might contend
that by notifying past patients of dangers related to their treatment, a
doctor is openly admitting that his previous therapy methods were actually malpractice. However, this is not the case. At the time of the initial
treatment, the therapeutic method met the requisite standard of care.
A successful cause of action for medical negligence must allege that at
the time of treatment, operation, therapy, etc., the doctor's conduct fell
below the recognized standard of care for the profession." 7 The doctor,
by relaying information regarding the dangers in the initial treatment,
is not stating that his previous actions were negligent. 48' The precise
reason for using a standard of care guideline is to prevent defendants
from being liable, regardless of their attempts to use currently accepted,
safe treatment procedures.'49 Otherwise, all defendants would be subjected
to strict liability,"' a standard currently reserved for very few situations.'
The imposition of the proposed duty does not force a doctor to guarantee
his results 5' or to incur strict liability; however, it does obligate a doctor
to assume responsibility for keeping his patients up-to-date on medical innovations affecting their prior treatment.
145 For a discussion of the defense based on failure to locate the patient see
supra note 118 and accompanying text.
14. For a discussion of the possible methods for a doctor to maintain patient
information see infra note 153.
"'But see Helling v. Carey, 84 Wash. 2d 514, 519 P.2d 981 (1974) (failure to
test patient under 30 years of age for glaucoma found to be negligent even though
doctor followed the recognized community standard. The court held that it was
unreasonable not to have administered the simple and inexpensive test, where
the outcome, if the test is not given, could be devastating.)
148 Courts usually do not interpret the duty of physicians to disclose as requiring a doctor to admit his negligence. "[lit does not necessarily follow that this
obligation to disclose must include the peripheral possibilities of misjudgment
and negligence," Millet v. Dumais, 365 A.2d 1038, 1041 (Me. 1976).
" If no amount of safety precaution would ensure a doctor from being liable
for malpractice because of a poor result or newly discovered data, few, if any,
individuals would choose to enter the medical profession.
150 For a discussion of strict liability in the medical profession see supra notes
141-42 and accompanying text.
"' Currently, strict liability is reserved for the areas of product liability,
unreasonably dangerous activities, animal keepers, and certain types of criminal
activity not requiring a mens rea. W. PROSSER, supra note 4, SS 75-81.
'"A physician may, although he seldom does, contract to cure his patient,
or to accomplish a particular result, in which case he may be liable for
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Damage to the Doctor's Practice
The reputation of a physician's practice may be on the line when he
finds it necessary to contact his previous patients regarding new findings
that render his prior treatment method dangerous or negligent. Those
opposed to this duty would conclude that the doctor's practice would be
damaged. Quite to the contrary, however, many would view his attempt
to warn as an indication of a conscientious mode of sincere care for his
patients. Undoubtedly, many patients would be grateful for current information regarding the status of their health problems. Rather than
reflecting a weakness in the physician's capabilities, the follow-up duty
contemplates an admirable sense of responsibility. A doctor's practice
could be damaged only if he was negligent in exercising his professional
skills; no damage would occur if the doctor merely revealed his sense
of responsibility for his patients by allowing them to decide whether they
wanted to take steps to correct a possible health hazard.
CONCLUSION
Progressive developments in tort theory have provided necessary help
to aid plaintiffs in meeting the burden of proof required for compensation
in medical negligence cases. The duty to follow up is a natural outgrowth
of the continuing trend to provide patient-plaintiffs with indemnification
for unnecessary suffering. In many ways the patient is at the mercy of his
physician due to the dearth of understandable medical information available
to the general public.
However, due to the vast amount of record-keeping"n that would be
required by this duty and the seemingly endless nature of this responsibility, the physician would do well to initiate some limitations to this
M
duty. Since the doctor-patient relationship is based on contractual theory,
a breach of contract when he does not succeed. In the absence of such
an express agreement, he does not warrant or insure the outcome of
his treatment ....
Id. S 32, at 162.
'5
There are several methods that the doctor could utilize in order to create
an effective method of record-keeping. Of course, on the individual patient charts
the doctor should record all treatments, prescriptions and therapies used in connection with the individual. Next, this information could be "cross-referenced"
in a manner similar to that recommended for use by doctors in preventing serious
injuries from adverse drug reactions:
[H]e (the doctor) might consider keeping a diary in which to record the
names of all patients who have received each drug, so that, when he
receives a new warning from a detail man or a revised product card
or a "Dear Doctor" letter, he can pass the warning on to every patient
taking the drug ....
Tozer, supra note 73, at 257. As long as the physician's staff keeps accurate patient address records the physician should experience no difficulty in locating
his former patients for the purpose of passing along treatment information.
11 For a discussion of the contractual nature of the doctor-patient relationship
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the doctor would be free to place restrictions on the contract provisions
by relying on written agreements that could carry time limits ' or
disclaimers." 6 Of course, it would be necessary for the contracts to be
well-constructed, easily understood and not of the adhesion variety. 5 ' If
some form of limitation is not placed on this duty, the doctor virtually
could be liable for updating patients whom he has not seen for many years.
With proper, fair-minded restrictions, the duty to warn a patient of
subsequently learned dangers with regard to previous non-negligent treatment will surely demonstrate a sincere concern for health care as well
as a concrete expression of the medical profession's ethical
responsibilities.'58
BARBARA EILEEN CALFEE
see supra note 94 and accompanying text.
See Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FED'N
RESEARCH J. 87. While discussing the concept of informed consent the author
stated:
Given the legitimate concern with consent ...
physicians and patients
(should) make explicit the rules governing their relationship, physicians
should be urged to post in their offices the terms and conditions under
which they will see patients; they should be encouraged to mail similar
notices to patients before any treatment is provided ....
There are
elaborate agreements for common purchases of household goods; we need
explicit agreements now for medical practice.
Id. at 128.
15 For example, the written agreement to be signed by the patient could state:
"This contract for follow-up professional medical services is in effect for 3 years
from the date of your last appointment. If more than three years elapse from
the date of your last appointment the doctor will not be responsible for relaying
updated medical information regarding your treatment. It is your duty to notify
the doctor of changes in your address or phone number." Cf. Nash v. Meyer,
54 Idaho 283, 31 P.2d 273 (1934) (if doctor contracts to give service only at his
office he is not negligent if he fails to go to the patient's house to attend her
after surgery).
"5For example, the written agreement to be signed by the patient could contain the following disclaimer: "The doctor will assume absolutely no responsibility
for updating you regarding your treatment. The doctor-patient relationship will
exist on a visit-to-visit basis only. If you return to the doctor he will provide
you with any new findings. If you choose not to return the doctor will not relay
new data to you."
157
An adhesion contract is a
[s]tandardized contract form offered to consumers of goods and services
on essentially 'take it or leave it' basis without affording consumer
realistic opportunity to bargain and under such conditions that consumer
cannot obtain desired product or services except by acquiescing in form
contract. Distinctive feature of adhesion contract is that weaker party
has no realistic choice as to its terms.
BLACK'S LAW DICTIONARY 38 (5th ed. 1979).
15 AMA PRINCIPLES OF MEDICAL ETHICS V (1980).
Published by EngagedScholarship@CSU, 1982
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http://engagedscholarship.csuohio.edu/clevstlrev/vol31/iss4/5
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